No. 222 October Term, 1976, Appeal from Judgment of Sentence in the Court of Common Pleas, Trial Division, Criminal Section, Philadelphia County, at Nos. 1230, 1233, 1236 and 1237 of November Term, 1974
John W. Packel, Assistant Public Defender, Chief, Appeals Division, Richard G. Freeman, Assistant Public Defender, Philadelphia, for appellant.
Eric Henson, Assistant District Attorney, Assistant Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., dissents. Jacobs, J., did not participate in the consideration of this case.
[ 269 Pa. Super. Page 400]
Appellant, David Robinson, was convicted of robbery,*fn1 rape,*fn2 burglary,*fn3 assault,*fn4 and possession of an instrument of a crime.*fn5 Post-trial motions were argued and denied. Appellant was sentenced to a total of 42 1/2 to 85 years in prison. The only issue we need address on this appeal is whether appellant was denied his right to a speedy trial in violation of Pa.R.Crim.P. 1100(a)(2).*fn6 We reverse the order of the lower court.
[ 269 Pa. Super. Page 401]
The criminal complaint was filed against appellant on October 26, 1974. Under Rule 1100, the Commonwealth was required to bring appellant to trial within 180 days or by April 24, 1975. Appellant's trial did not commence until July 17, 1975 which was 264 days after the criminal complaint was lodged. Prior to trial, counsel for appellant filed a petition to dismiss pursuant to Pa.R.Crim.P. 1100(f)*fn7 which was denied. The Commonwealth failed, at any time, to file for an extension of time pursuant to Pa.R.Crim.P. 1100(c).*fn8
In Rule 1100 cases, all periods of delay beyond the 180 day period
"'. . . must be either excluded from the computation [of the period, Pa.R.Crim.P. 1100(d)] or justified by an order granting an extension pursuant to the terms of rules [Pa.R.Crim.P. 1100(c)] if the Commonwealth is to prevail.'" Commonwealth v. Shelton, 469 Pa. 8, 14, 364 A.2d 694, 697 (1976), quoting Commonwealth v. O'Shea, 465 Pa. 491, 496, 350 A.2d 872, 874 (1976).
[ 269 Pa. Super. Page 402]
Since the Commonwealth did not apply for an extension, "it was obliged to establish by a preponderance of the evidence that  days should have been excluded from the computation of the permissible time pursuant to section (d)*fn9 Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977)." Commonwealth v. Wade, 475 Pa. 399, 380 A.2d 782 (1977). Since the Commonwealth did not file a brief in the instant appeal, a practice which we cannot continue to accept under any circumstances,*fn10 we must look to the opinion of the lower court and the record before us to determine whether the 83 days are excludable.
In our review, the first period we address is from April 15, 1975 to May 23, 1975. On April 15, appellant requested a continuance until May 23, 1975, a period of 38 days. The continuance was granted and appellant and his counsel signed a waiver of appellant's Rule 1100 rights during that time. Both the lower court opinion and appellant's brief indicate that appellant should only be accountable for eight days of the 38 day extension pursuant to 1100(d)(2) which allows a 30 day grace period for continuances granted to the defense in excess of 30 days. However, our case law has held that when a continuance is coupled by a signed and valid waiver of Rule 1100 rights, all the days involved in the ...